Aaron M. Shank ashank@porterwright.com

Porter Wright Morris & Arthur LLP

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CHICAGO

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June 19, 2019

Jay Paul

Senior Planner

City of Escondido

201 North Broadway

Escondido, CA 92025

Re. AT&T’s Initial Comments on the City of Escondido’s

Proposed Guidelines for Deployment of Small Wireless

Facilities in the Public Right-of-Way

Dear Mr. Paul:

I write on behalf of New Cingular Wireless PCS, LLC d/b/a

AT&T Mobility (AT&T) to provide initial comments on the City of

Escondido’s proposed guidelines for deployment of small wireless

facilities in the public right-of-way (“Proposed Guidelines”). AT&T

appreciates that the City recognizes the need to address changes in

applicable state and federal laws, including the Federal

Communications Commission’s Infrastructure Order.1 With more than

70% of Americans relying exclusively or primarily on wireless

telecommunications, it is especially important to encourage responsible

deployments consistent with applicable law.

Unfortunately, the Proposed Guidelines would establish new

rules at odds with state and federal laws. AT&T respectfully asks that

the City to pause its deliberations briefly to consider these and other

comments from the wireless industry before adopting the Proposed

Guidelines. AT&T offers the following summary of applicable laws

along with specific comments on the Proposed Guidelines.

Key Legal Concepts

The Federal Telecommunications Act of 1996 (“Act”)

establishes key limitations on local regulations. The Act defines the

scope and parameters of the City’s review of AT&T’s applications.

Under the Act, the City must take action on AT&T’s applications

“within a reasonable period of time.”2 The FCC has established and

codified application “shot clocks” to implement this timing

1 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory

Ruling and Third Report and Order, FCC 18-133 (September 27, 2018) (“Infrastructure Order”). 2 47 U.S.C. § 332(c)(7)(B)(ii).

ATTACHMENT 5

City of Escondido

June 19, 2019

Page 2 of 8

requirement.3 And the FCC has made clear that the City must grant all necessary approvals and

authorizations within the applicable shot clock.4

The Act also requires that the City’s review of AT&T’s applications must be based on

substantial evidence.5 Under the Act, state and local governments may not unreasonably

discriminate among providers of functionally equivalent services.6

The Act also prohibits a local government from denying an application for a wireless

telecommunications facility where doing so would “prohibit or have the effect of prohibiting”

AT&T from providing wireless telecommunications services.7 The FCC has ruled that an

effective prohibition occurs when the decision of a local government materially inhibits wireless

services.8 The FCC explained that the “effective prohibition analysis focuses on the service the

provider wishes to provide, incorporating the capabilities and performance characteristics it

wishes to employ, including facilities deployment to provide existing services more robustly, or

at a better level of quality, all to offer a more robust and competitive wireless service for the

benefit of the public.”9 Thus, a local government “could materially inhibit service in numerous

ways – not only by rendering a service provider unable to provide existing service in a new

geographic area or by restricting the entry of a new provider in providing service in a particular

area, but also by materially inhibiting the introduction of new services or the improvement of

existing services.”10

In September 2018, the FCC issued its small cell deployment order and associated rules,

which went into effect on January 14, 2019. Under this Infrastructure Order, the FCC

established a standard for lawful fees, which requires that: “(1) the fees are a reasonable

approximation of the state or local government’s costs, (2) only objectively reasonable costs are

factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated

competitors in similar situations.”11

Thus, only objectively reasonable costs that are recovered on

a nondiscriminatory basis can be included in fees. In addition to establishing a standard for

lawful fees, the FCC provides a safe harbor for presumptively reasonable fees: (a) $500 for non-

recurring fees for an application including up to five small cells, plus $100 for each small cell

beyond five, or $1,000 for non-recurring fees for a new pole to support small cells; and (b) $270

3 See 47 C.F.R. §§ 1.6001, et seq.

4 See Infrastructure Order at ¶¶ 132-137 (FCC concluded that shot clocks “apply to all authorizations a locality may

require, and to all aspects and steps in the siting process, including license or franchise agreements to access ROW,

building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic

approvals, and other authorizations needed for deployment”). 5 47 U.S.C. § 332(c)(7)(B)(iii).

6 47 U.S.C. §332(c)(7)(B)(i)(I).

7 47 U.S.C. §332(c)(7)(B)(i)(II).

8 See Infrastructure Order (The FCC rejected the significant gap/least intrusive means test for an effective

prohibition that many courts, including the Ninth Circuit, have applied to all wireless facilities); see also, In the

Matter of California Payphone Association Petition for Preemption, Etc., Opinion and Order, FCC 97-251, 12 FCC

Rcd 14191 (July 17, 1997). 9 Infrastructure Order at n. 95.

10 Id. at ¶ 37.

11 Id. at ¶ 50.

City of Escondido

June 19, 2019

Page 3 of 8

per small cell per year for all recurring fees.12

The FCC also established a standard for local

aesthetic regulations that they must be (1) reasonable (i.e., has to be technically feasible), (2) no

more burdensome than those applied to other infrastructure deployments, and (3) objective and

published in advance.13

AT&T has a statewide franchise right to access and construct telecommunications

facilities in the public rights-of-way. Under Public Utilities Code Section 7901, AT&T has the

right to access and construct facilities in public rights-of-way in order to furnish wireless

services, so long as it does not “incommode” the public use of the public right-of-way. And

under Section 7901.1, AT&T’s right is subject only to the City’s reasonable and equivalent time,

place, and manner regulations.

Specific Comments on the Proposed Guidelines

1. Permit Processes. In earlier discussions with City Staff, it was AT&T’s understanding

that the City would establish processes and design criteria that would encourage applications for

administrative decisions for small cell siting. While it appears that may be the intent with the

Proposed Guidelines, the City needs to make some revisions and clarify its processes to make

sure that the criteria for fitting into an administrative process are reasonable and practical.

Specifically, it is unclear whether certain dimensional criteria are absolute requirements

that will result in denial of nonconforming designs, or merely the thresholds for whether a

proposed facility can be heard administratively. For example, Section IV(D)(3)(b) limits pole-

mounted accessory equipment to 7 cubic feet. AT&T’s small cells will not meet this standard.

Does this mean that AT&T’s small cells are prohibited altogether, as this provision reads? Or

does this mean that facilities proposed to include pole-mounted accessory equipment in excess of

7 cubic feet – including all of AT&T’s small cells – cannot be handled administratively, but still

qualify to be considered under the City’s minor conditional use permit process? In addition,

clarification is needed because Section III(B)(1)(a) of the Proposed Guidelines appears to cite an

incorrect cross-reference to Escondido’s Code (we believe the City means to refer to Section 33-

704(k)(8)(B)).

Moreover, the City cannot prohibit or effectively prohibit all small cells. Presuming that

the City does not intend that result, and instead intends to route applications that do not meet

design criteria to a minor CUP process, the process is still likely unlawful because it

unreasonably and unnecessarily forces all small cells into a more burdensome process than for

other infrastructure deployments. This violates the FCC’s Infrastructure Order. But this

significant problem can be easily addressed – it arises only as a matter of an inch or two here and

there. That is, if the City takes a little more time to work with AT&T and other industry members

to be sure that its administrative process will accommodate real-world small cells, the Proposed

Guidelines can be brought in line with the FCC’s requirements with only slight changes to the

dimensional criteria for antennas and equipment.

12

Id. at ¶ 79. 13

See id. at ¶ 86.

City of Escondido

June 19, 2019

Page 4 of 8

2. Master License Agreement. In Section III(B)(3) of the Proposed Guidelines, the City

appears to require a separate master license agreement for each application that must be

submitted concurrently with the small wireless facility permit and encroachment permit. The

City, however, should not require a separate master license agreement for each application, and

AT&T does not believe that is what the City intended. The City should revise this provision to

clarify that only one city-wide master license agreement is required, which may include

individual site-license agreements for each facility.

3. Acceptance of Applications. Under Section III(C), providers must submit applications in-

person and only during designated times, which may be limited to as few as four hours per week.

The FCC’s shot clock rules and regulations do not support these significant limits on filing

applications. In fact, the shot clock will start when an application is submitted – even by proffer

– whether or not the City accepts the filing.14

While AT&T will certainly work with the City and

try to file its applications in-person during designated hours, the City must allow more flexibility

to avoid unnecessary disputes.

4. Fees. Section III(G) allows the City to establish fees for small wireless facilities by City

Council resolution. AT&T asks that the City provide a copy of its approved fee schedule so that

we can check whether the fees comply with the Infrastructure Order.

5. Batched Applications. AT&T objects to Section III(D), which limits batched applications

to five small wireless facilities and deems the entire batch denied if any application in the batch

does not match the other facilities in that batch. This is inconsistent with the Infrastructure Order

and the corresponding rule, which do not authorize batching limitations.15

Further, denial of

companion applications will violate the Telecommunications Act, which prohibits the City from

denying a wireless siting application absent substantial evidence.

6. Application Processing. Section III(H), which provides the review process for small

wireless facilities applications, allows the Planning Division to verify compliance with the City’s

design and development standards before the Engineering Services Department begins its review

of the technical specifications. While multiple departments certainly may review an application,

all reviews must take place within the shot clock and the City has only 10 days to issue an

incomplete notice from the time the application is first submitted.16

Thus, for example, if the

application does not proceed to the Engineering Services Department within the first ten days,

that department will be unable to pause or reset the shot clock. From a practical perspective, the

City should apply a concurrent review process to ensure it can comply with the shot clock.

Section III(H) also limits applicants to one resubmittal per application. This restriction is

unlawful and must be deleted. This clearly violates federal law, including FCC regulations that

explicitly contemplate the possibility for multiple resubmittals.17

14

See id. at ¶ 145. 15

See 47 C.F.R. § 1.6003(c)(2) and Infrastructure Order at ¶114. 16

Infrastructure Order at ¶ 143. 17

See 47 C.F.R. § 1.6003(d).

City of Escondido

June 19, 2019

Page 5 of 8

7. Subjective Requirements. The City’s Design and Development Standards contain some

subjective aesthetic standards that cannot be the basis for denial. For example, on Pages 7-9 of

the Proposed Guidelines, the City requires that small wireless facilities “utilize the least intrusive

design available.” And on page 12, in Section IV(D)(6), the City requires antennas and

equipment be “placed to minimize visibility.” These requirements are overly subjective and

cannot be enforced. The City also provides that if any installations are available in other

jurisdictions that are “less intrusive,” applicants must utilize those designs, “unless the Director

or permit decision-maker determines that those installations are not feasible.” In addition to

being too subjective to enforce, this also violates the FCC’s standard by imposing a requirement

that is not published in advance (i.e., an applicant cannot know in advance how the City will

apply these requirement for any particular application). Moreover, this standard fails to recognize

that designs between jurisdictions may reasonably and appropriately differ from one another.

While AT&T would be happy to discuss designs that are favored in other jurisdictions, the City

must enact regulations specific to Escondido.

8. Prohibited Support Structures. The City should strike the proposed ban on the installation

of enumerated support structures in Section IV(C) of the Proposed Guidelines, including traffic

signals, archways over roads or pedestrian plazas/walkways and wooden utility poles. First, the

FCC made clear that its interpretations apply to all government owned or controlled structures

within the right-of-way.18

These categorical bans on attaching facilities to certain structures will

also effectively prohibit wireless services in certain parts of the City in violation of the Act.

Moreover, it makes sense to allow traffic light installations, for instance, because it

permits the wireless provider to cover multiple directions from one location, which a mid-block

location may not support. Further, placements on archways over roads or pedestrian walkways

may be more aesthetically pleasing and may help AT&T to provide critical wireless services to

customers in transit. Finally, AT&T has the right to place wood poles, and a blanket prohibition

on wood poles for small wireless facilities is discriminatory.

9. Undergrounding. Several provisions in the Proposed Guidelines mandate undergrounding

of equipment. These requirements must be revised to the extent necessary to avoid unlawful

discrimination or effectively prohibiting wireless services in violation of the Act. Wireless

facilities cannot operate with all equipment underground. Antennas must be above ground in

order to broadcast and receive and radio units must be placed above ground in order to be near

enough to the antennas to function properly.

10. Locations Near Residential Units. Section IV(C)(2) on Page 9 of the Proposed Guidelines

states that small wireless facilities cannot be “located closer than 40 feet from any residential

unit, unless said unit has no windows or doors on any wall facing the antenna.” This requirement

is discriminatory to the extent not applied to other infrastructure deployments. It should also be

deleted to avoid effectively prohibiting wireless services. Further, small cells are low-profile,

low-power facilities that need to be placed near customers to provide and improve service.

18

Infrastructure Order at ¶ 69.

City of Escondido

June 19, 2019

Page 6 of 8

11. Prohibition on Utilizing an Arm or Other Horizontal Bracket/Brace. Section IV(C)(3) on

Page 9 of the Proposed Guidelines prohibits small wireless facilities that “project from a support

structure by use of an ‘arm’ or other horizontal bracket/brace.” But in some instances, arms or

horizontal brackets or braces may be necessary for deployment. This prohibition is likely

discriminatory and may effectively prohibit wireless services. In fact, this requirement is

inconsistent with Section IV(D)(2)(g), which authorizes brackets and mounting arms. This

provision should be eliminated.

12. Prohibition on Signage. Section IV(C)(8) on Page 9 of the Proposed Guidelines prohibits

signage on small wireless facilities. Some signage, however may be required by law. And many

jurisdictions prefer that providers post signage that identifies the site owner or operator and

includes accurate contact information. This provision needs to be revised.

13. Height. Section IV(D)(1)(a) limits the overall height of small wireless facilities above a

support structure in the public right-of-way to four feet above the support structure. This limit

may actually harm aesthetics by preventing AT&T’s ability to deploy its most stealthy facilities.

For example, AT&T’s typical streetlight-top design extends up to six feet above the pole top,

which is a design cities typically favor. Furthermore, this overall height limit may effectively

prohibit wireless services, especially in areas where lower attachment heights are unavailable on

existing poles in a particular area.

14. Overly Restrictive Dimensions. Section IV(D)(2)(b) provides a maximum cumulative

volume of three cubic feet for all antennas and shrouds on a small wireless facility. This

requirement is inconsistent with federal law, which caps individual antenna volume at three

cubic feet but neither includes the shroud in that calculation nor places a limit on cumulative

volume for antennas. This Section should be revised to be consistent with the FCC’s regulation.19

Section IV(D)(2)(c) limits top-mounted antennas and shrouds to 16 inches wide. And

Section IV(D)(2)(e) limits side-mounted and flush-mounted antennas with integrated radios to 12

inches wide and 9 inches deep. These dimensions will prohibit (or route to a minor CUP process)

most of AT&T’s small cells. Again, just a few slight changes to these restrictions will avoid

unlawful prohibitions and better suit the City’s goal to encourage use of its administrative

process. In addition to reviewing AT&T’s actual design parameters, AT&T recommends that the

City consider a process whereby pre-approved designs can be administratively approved. Doing

so will prevent unnecessary disputes and be far more efficient for applicants and the City.

15. Concealment. Many of the City’s design standards in the Proposed Ordinance for small

wireless facilities require concealment. But under the FCC’s aesthetic standard for small cells,

concealment cannot be required to a greater extent than imposed on other infrastructure

deployments in the rights-of-way. Further, some wireless components cannot be concealed. For

example, certain antennas being used for the latest generation of wireless technology cannot

propagate an effective signal through concealment. And to avoid effectively prohibiting wireless

services any concealment requirements must be limited “to the extent technically feasible.”

19

See 47 C.F.R. § 1.6002(l).

City of Escondido

June 19, 2019

Page 7 of 8

16. Support Structure Preferences. Section IV(A) of the Proposed Guidelines provides the

City’s support structure preferences for antenna placement, which includes a strong preference

for placement on the City’s street lights. The City can articulate reasonable and

nondiscriminatory location preferences, but cannot steer wireless installations onto City-owned

structures. Doing so will violate California Government Code Section 65964(c), which prohibits

the City from requiring “that all wireless telecommunications facilities be limited to sites owned

by particular parties.”

17. Accessory Equipment Volume. The City limits the volume of pole-mounted accessory

equipment to 7 cubic feet in Section IV(D)(3)(b). This is not technically feasible, and therefore

unreasonable, which violates the FCC’s aesthetic standard. This is too small to accommodate

real-world small cells, which will materially inhibits AT&T’s ability to provide and improve

wireless services in violation of the Telecommunications Act.

The City also restricts the size of “above-ground equipment cabinets.” This term is

ambiguous and needs to be clarified. AT&T believes that the City does not intend this phrase to

refer to pole-mounted cabinets, even though those are “above-ground.” Instead, in context,

AT&T believes that the City intends this phrase to refer to ground-mounted cabinets, such as

meter pedestals. In that case, AT&T does not object to the dimensions provided under Section

IV(D)(3)(c). But if the City means to limit pole-mounted cabinets in this way, AT&T objects.

18. Number of Antennas, Radios and Equipment Cabinets. In Section IV(D)(4)(d), only one

top mount antenna or two side-mount antennas are allowed per pole. This requirement must be

deleted. Federal law does not permit local governments to impose a limit on the amount of

antennas for small wireless facilities. Additionally, limiting the amount of radios will effectively

prohibit deployments of the latest generation of wireless technology. To avoid dictating or

prohibiting technologies, which is unlawful, the City must provide for more flexibility in its

Proposed Guidelines. Moreover, such limitations – even if they were lawful – would result in

proliferation of wireless facilities because these limits would force providers to install more sites

to accomplish the same objectives.

19. Indemnification. The City should not seek indemnity from an underlying property owner,

as it does under the City’s Standard Conditions of Approval on Page 17 of the Proposed

Guidelines. Not only does this risk interfering with existing leases, it also has the effect of

interfering with prospective economic relations between AT&T and property owners within the

City. In addition, the indemnification provision needs to carve out exceptions to indemnity in

instances of the City’s own negligence. And AT&T must retain the right to select its own

counsel.

20. Cooperation with RF Compliance Evaluations. On Page 18 of the Proposed Guidelines,

the City requires providers to complete a “written affidavit signed by an RF engineer certifying

the wireless facility’s compliance with applicable FCC rules and regulations.” This does not

comport with applicable federal law, which requires assessment reports (not affidavits) in some

City of Escondido

June 19, 2019

Page 8 of 8

instances, but also categorically excludes other applications from the FCC’s radio frequency

exposure standards.

21. Electric Meter Upgrades. AT&T objects to the City’s electric meter upgrade provision on

Page 19 of the Proposed Guidelines. Once AT&T installs a ground-mounted electric meter, the

meter is permitted to remain for ten years. AT&T will discuss removal of a ground-mounted

electric meter in the context of a permit renewal.

Conclusion

AT&T appreciates the City’s initial efforts to develop wireless facility siting regulations

to accommodate new and emerging technologies and changes in law. By addressing the items we

raise here, the City will go a long way toward encouraging deployments consistent with state and

federal policies and to the great benefit of the City’s residents and businesses. In addition, AT&T

requests the City take a little more time to work with wireless providers to develop proper

regulations that will accommodate existing facility designs.

Very truly yours,

Aaron M. Shank

From: Salas, AdrianTo: Jay Paul; Adam FinestoneCc: Friese, TanyaSubject: Comments - Crown Castle - Draft Wireless Design GuidelinesDate: Wednesday, June 19, 2019 3:50:53 PM

Hi Jay and Adam, Regarding the draft guidelines that will be before the Planning Commission on Tuesday, we wouldlike to submit the following: We perceive several components of the draft to be in conflict with the FCC order and Federal law,which require that small wireless facilities be held to the same processes as other users of the right-of-way. We find many of the permitting requirements in section III-B to be prohibitive (or effectivelyprohibitive) of wireless service, such as prohibitions 6 and 7 on page 9. The section titled Acceptanceof Applications does not include any reference to Notice of Incomplete, which is the standard way toaddress an application that is deemed to be missing something. Though we always try to submitfully complete applications, even if incomplete, the shot clock would not restart. On section II. A, the draft says that the “guidelines shall be applicable to all existing small wirelessfacilities in the public ROW.” Is the city’s intent to make these rules retroactive? Clarification wouldbe helpful here, because a retroactive standard would bring other problems with it. Additionally, the guidelines state an MLA is needed to attach to any city-owned structure – do youhave any information on that process? Are we able to start that process while the guidelines gothrough this process. We appreciate the city’s concerns and the opportunity to provide comments to come up with aprocess that works. Because of turnaround times and not receiving the draft directly, we haven’tprovided an exhaustive list of the issues we have – at this stage our comments are high level. Pleaseinclude myself and Tanya Friese on future correspondences to industry on this topic. Thank you! ADRIAN SALASGovernment Affairs Manager, San DiegoT:(858) 935-3831M:(619) 917-6116 CROWN CASTLE10301 Meanley Dr. Ste. 200 San Diego, CA 92131CrownCastle.com This email may contain confidential or privileged material. Use or disclosure of it by anyoneother than the recipient is unauthorized. If you are not an intended recipient, please delete thisemail.

mailto:Adrian.Salas@crowncastle.commailto:jpaul@escondido.orgmailto:afinestone@escondido.orgmailto:Tanya.Friese@crowncastle.com

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July 16, 2019 VIA EMAIL James Spann Chairman, Planning Commission City of Escondido 201 North Broadway Escondido, California 92025

Re: Draft Zoning Code Amendments and Guidelines, Small Cell Wireless Facilities Planning Commission Agenda, July 23, 2019

Dear James: We write on behalf of Verizon Wireless regarding the draft zoning code amendments (the “Draft Amendments”) and draft Guidelines for Deployment of Small Wireless Facilities in the Public Right-of-Way (the “Draft Guidelines”). Verizon Wireless is concerned that several provisions contradict the recent Federal Communications Commission (“FCC”) order addressing appropriate small cell approval criteria. For example, subjective standards contradict the FCC’s requirement for objective review of small cells, and technically infeasible standards are unreasonable according to the FCC. Other provisions contradict state law granting telephone corporations a right to place their equipment, including new poles, along any right-of-way. We urge the Commission to defer action on these draft regulations, and direct staff to work with industry on needed revisions.

To expedite deployment of small cells and new wireless technology, the FCC adopted its September 2018 order to provide guidance on appropriate approval criteria for small cells. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27, 2018) (the “Small Cells Order”). Among other topics, the FCC addressed aesthetic criteria for approval of qualifying small cells, concluding that they must be: “(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.” Id., ¶ 86. “Reasonable” standards are “technically feasible” and meant to avoid “out-of-character deployments.” Id., ¶ 87. “Objective” standards must “incorporate clearly-defined and ascertainable standards, applied in a principled manner.” Id., ¶ 88.

James Spann City of Escondido July 16, 2019 Page 2 of 5

Our comments on the Draft Amendments and the Draft Guidelines are as follows. Subjective Standards Cannot Apply to Small Cells. The Draft Amendments retain several subjective standards of the existing code that are preempted with respect to small cells. Among these are “designed in scale with surrounding buildings,” “aesthetic integration,” vague references to “stealth” technology, and indefinite screening requirements such as “integrating architectural elements…appropriate to the specific situation.” See, e.g., Draft Amendments §§ 33-703(a)(1), 33-703(b)(2-3), 33-703(c), 33-704(b). These are matters of opinion that could be used to deny small cells that otherwise meet objective standards. The Draft Guidelines introduce new subjective criteria to the process, including the “least intrusive” standard which does not provide clear design direction and leaves applicants guessing at the outcome of their applications, which the FCC discouraged. Draft Guidelines §§ IV(D), V(G); Small Cells Order, ¶ 88. The possibility that applicants must copy installations in other jurisdictions disregards the City’s responsibility to develop its own objective guidelines that are published in advance.

The draft regulations must be scrubbed of any subjective standards that apply to small cells. To be clear and objective, all small cell standards should be placed in one document, the Draft Guidelines, with quantifiable criteria such as maximum dimension thresholds.

Location and Structure Standards Must Accommodate Small Cells in All Rights-of-Way, Including on Utility Poles.

Under the Draft Amendments, all wireless facilities including small cells are encouraged in the right-of-way. Draft Amendments § 33-703(b). However, one Draft Guidelines provision requires a 40 foot setback from residential units. Draft Guidelines § IV(C)(2) (additional prohibitions). While this does not apply if no door or window faces an antenna, it could exclude small cells from long stretches of right-of-way along home frontages with lesser setbacks. This contradicts California Public Utilities Code Section 7901 which grants telephone corporations such as Verizon Wireless a statewide right to place equipment along any right-of-way. The prohibitive setback of Draft Guidelines Section IV(C)(2) should be stricken. The Draft Guidelines prefer use of street light poles over utility poles. Draft Guidelines § IV(A). However, if strictly applied, this top preference for City-owned poles would contradict California Government Code Section 65964(c) which bars local governments from limiting wireless facilities to sites owned by particular parties. Verizon Wireless has the right to place its telephone equipment on joint utility poles as a member of the Southern California Joint Pole Committee. Small cell equipment is not “out-of-character” on utility poles, given existing utility lines and infrastructure, and

James Spann City of Escondido July 16, 2019 Page 3 of 5 denying this option would be unreasonable. Structure preferences should be relaxed to accommodate use of joint utility poles where they are found along the right-of-way, giving them a preference equal with street light poles. Draft Guidelines Section IV(A) should be revised simply to favor existing structures in the right-of-way over new poles. The proposed ban on replacement wood utility poles contradicts the Small Cells Order. Draft Guidelines § IV(C)(7). Occasionally, a wood utility pole may be replaced for increased structural capacity to support the additional equipment of any public utility, not only wireless carriers. Again, small cell equipment is not “out-of-character” on a jointly-used wood utility pole where multiple utilities place their infrastructure. In contrast, a metal utility pole would look mismatched along a span of wood poles. The City cannot compel other utilities using a wood pole to relocate their equipment to an alternate type of structure. Draft Guidelines Section IV(C)(7) is unreasonable and must be stricken. For new poles, the City cannot require design as a street light pole through its structure preferences. Draft Guidelines § IV(A)(4-5, 9). This clearly contradicts Verizon Wireless’s right under Public Utilities Code Section 7901 to erect new poles in the right-of-way solely to elevate telephone equipment. The City’s limited aesthetic review extends to wireless facility equipment, but lighting is not a functional requirement for wireless service. Further, because this state law treats new poles the same as other telephone equipment, the City cannot subject new poles owned by Verizon Wireless to the more onerous process of a minor conditional use permit. Draft Guidelines § IV(D)(6). A minor conditional use permit involves public notice and a hearing which inject subjectivity to the review process, whereas the FCC requires objective review of small cells including any new poles. We recommend that new poles be approved under the same administrative permit as for any small cell. The City should consult with wireless carriers regarding new pole designs to be the basis of objective standards.

Equipment Standards Must Be Revised To Be Reasonable. The FCC determined that undergrounding requirements, similar to aesthetic requirements, must be reasonable, non-discriminatory and objective. Small Cells Order, ¶¶ 86, 90. The Draft Guidelines prefer accessory equipment underground. Draft Guidelines § IV(B). While there is an exception if undergrounding is technically infeasible, this standard is unreasonable nonetheless. Undergrounding is generally impossible due to sidewalk space constraints and undue environmental and operational impacts for required active cooling and dewatering equipment. Feasibility aside, this requirement is also unreasonable because small equipment boxes on the side of a pole are not “out-of-character” among typical infrastructure in the right-of-way, including on street light poles.

Utility poles in particular offer ideal sites for small cells by consolidating new equipment on existing utility infrastructure, and the Draft Guidelines do provide for pole-

James Spann City of Escondido July 16, 2019 Page 4 of 5 mounted accessory equipment. However, the limit to seven cubic feet may not quite accommodate required radio units and other network components. Draft Guidelines § IV(D)(3)(b). If shroud or cabinet coverings are included in volume calculations, actual network gear will be curtailed to a much smaller volume given empty space within a shroud for cables and air circulation. To allow for typical small cell equipment required for service, the City should permit up to nine cubic feet of accessory equipment on the side of a utility pole, or five cubic feet on a street light pole, before any undergrounding is considered. Shroud or cabinet coverings should not count toward volume calculation.

We note that the constraint on equipment to wood pole width in Draft Guidelines

Section IV(D)(5)(b) would be too narrow and technically infeasible for most radio units models, and it is much less than the 20 inches allowed under aforementioned Section IV(D)(3)(b). With radios of sufficient size and wattage, a small cell’s service area is increased, and fewer such facilities are required to serve an area. Draft Guidelines Section IV(D)(5)(b) should be stricken.

Requirements for flush-mounting of antennas cannot apply to electric utility poles where side-mounted antennas must be set off two feet from the pole centerline to comply with Public Utilities Commission General Order 95 Rule 94.4(E). Draft Guidelines §§ IV(A)(7), IV(D)(2)(e). These requirements should be qualified, “unless greater separation is required by General Order 95.”

Height Allowances Should Be Slightly Increased to Accommodate Typical Small Cells.

The Draft Guidelines limit height to 50 feet or four feet above support structures, whichever less. Draft Guidelines § IV(D)(1). These and other height restrictions contradict the height allowances in the FCC’s definition of small cells, recited in the Draft Amendments, which are no less than 50 feet and may be more. Draft Amendments § 33-702; 47 C.F.R. § 1.6002(l).

For utility poles, antennas must be elevated at least six feet above pole-top electric supply conductors to comply with General Order 95 Rule 94.4(C). Verizon Wireless typically uses a four-foot tall antenna above a utility pole that also requires a mount underneath to attach the antenna to the pole or pole-top extension (and conceal cables). As elements associated with antennas, the mounts are also subject to separation requirements of General Order 95. Four-foot antennas provide expanded coverage, requiring fewer facilities. The proposed height limits will not accommodate four-foot antennas, their mounts and separation distances. To comply with General Order 95 and to provide for expanded service, we recommend an additional height provision for new and replacement utility poles allowing up to twelve feet above existing pole height. The Draft Amendments and Draft Guidelines require several revisions to comply with the FCC’s Small Cells Order and state law. Verizon Wireless would be pleased to

James Spann City of Escondido July 16, 2019 Page 5 of 5 work with staff to develop workable regulations that accommodate typical small cells required for service. To that end, we urge the Commission to defer any action on this item, and direct staff to meet with industry.

Very truly yours, Paul B. Albritton

cc: Adam Philips, Esq. Adam Finestone Bill Martin Mike Strong

Aaron M. Shank ashank@porterwright.com

Porter Wright

Morris & Arthur LLP

41 South High Street

Suites 2800-3200

Columbus, Ohio 43215-6194

Direct: 614.227.2110

Fax: 614.227.2100

Main: 614.227.2000

www.porterwright.com

CHICAGO

CINCINNATI

CLEVELAND

COLUMBUS

DAYTON

NAPLES

PITTSBURGH

WASHINGTON, DC

July 16, 2019

VIA E-MAIL (mstrong@escondido.org)

City of Escondido Planning Commission

201 North Broadway

Escondido, CA 92025

RE: AT&T's Comments on the City of Escondido's Revised Guidelines

for Deployment of Small Wireless Facilities in the Public Right-of-

Way and the City's Proposed Wireless Code Amendments to

Chapter 33 of the Escondido Zoning Code

Dear Chairman Spann, Vice-Chair Romo, and Commissioners Cohen, Garcia,

McNair, Watson and Weiler:

I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T

Mobility (AT&T) to provide comments on the City’s revised guidelines for

deployment of small wireless facilities in the public right-of-way (“Proposed

Guidelines”), and the City’s proposed wireless code amendments to Chapter

33 of the Escondido Zoning Code (“Proposed Amendments”). AT&T

commends the City taking time to revise its Proposed Guidelines and its

Zoning Code in light of AT&T’s previous comments and changes in

applicable state and federal laws, including the Federal Communications

Commission’s Infrastructure Order.1 AT&T appreciates the City’s

clarification that master license agreements are only required for attachments

to City-owned structures in the right-of-way and for allowing providers to

submit designs for pre-approval.

The Proposed Guidelines and Proposed Amendments still require

further revisions to comply with both state and federal laws. AT&T asks that

the City reconsider its comments raised in our June 19, 2019 letter to Messrs.

Paul and Finestone. AT&T offers these additional comments on particularly

problematic provisions that remain.

AT&T’s Comments on the Proposed Guidelines and Proposed Amendments

1. Subjective Requirements. The City’s revised design and development

standards in the Proposed Guidelines and design standards in the Proposed

Amendments contain some subjective aesthetic standards that cannot be the

basis for denial. For example, multiple standards require that facilities utilize

the least intrusive design available and are the least intrusive possible, and in

Section IV(D)(7) of the Proposed Guidelines, the City requires antennas and

1 See Accelerating Wireless Broadband Deployment by Removing Barriers to

Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133

(September 27, 2018) (“Infrastructure Order”).

mailto:mstrong@escondido.org

City of Escondido Planning Commission

July 16, 2019

Page 2 of 5

equipment be “placed to minimize visibility.” Furthermore, Section 33-703(a) requires providers to

“utilize the lowest profile technology” and discourages “high-profile antenna installations.” These

requirements are too subjective to be enforced. The City also still provides in the Proposed Guidelines

that if any installations are available in other jurisdictions that are “less intrusive,” applicants must utilize

those designs, “unless the Director or permit decision-maker determines that those installations are not

feasible.” In addition to being too subjective to enforce, this also violates the FCC’s standard by imposing

a requirement that is not published in advance (i.e., an applicant cannot know in advance how the City

will apply these requirements for any particular application). Moreover, this standard fails to recognize

that designs between jurisdictions may reasonably and appropriately differ from one another. While

AT&T would be happy to discuss designs that are favored in other jurisdictions, the City must enact

regulations specific to Escondido.

2. Concealment. Many of the City’s design standards in the Proposed Guidelines and Proposed

Amendments for small wireless facilities require concealment. But under the FCC’s aesthetic standard for

small cells, concealment cannot be required to a greater extent than imposed on other infrastructure

deployments in the rights-of-way, and there are non-concealed electric distribution facilities throughout

the City’s rights-of-way. Further, some wireless components cannot be concealed.

3. Residential Zones. Section IV(C)(2) on Page 8 of the Proposed Guidelines states that small cells

cannot be “closer than 40 feet from any residential unit, unless said unit has no windows or doors on any

wall facing the antenna.” And Sections 33-703 and 33-706 of the Proposed Amendments discourages

facilities in residential zones unless the provider submits a feasibility study and applies for a conditional

use permit. Regarding small cells, these provisions are discriminatory to the extent not applied to other

infrastructure deployments. They should also be deleted to avoid effectively prohibiting wireless services.

Further, small cells are low-profile, low-power facilities that need to be placed near customers to provide

and improve service.

4. Support Structure Preferences. Section IV(A) of the Proposed Guidelines provides the City’s

support structure preferences for antenna placement, which includes a strong preference for placement on

the City’s street lights. And Section 33-704(k)(2) says that small wireless facilities are only permitted on

existing or replacement street lights if the Proposed Guidelines become unenforceable. The City can

articulate reasonable and nondiscriminatory location preferences, but cannot steer wireless installations

onto City-owned structures in violation of state law, which prohibits the City from requiring “that all

wireless telecommunications facilities be limited to sites owned by particular parties.”2

5. Undergrounding. Several provisions in the Proposed Guidelines and Proposed Amendments

mandate undergrounding of equipment. These requirements must be revised to the extent necessary to

avoid unlawful discrimination or effectively prohibiting wireless services in violation of the Act. Wireless

facilities cannot operate with all equipment underground. Antennas must be above ground in order to

broadcast and receive and radio units must be placed above ground in order to be near enough to the

antennas to function properly.

6. Permit Processes. The City needs to further revise its processes so that its criteria for processing

small cell siting applications in an administrative process are reasonable and practical. Specifically, in

Section 33-704(k)(6)(B) of the Proposed Amendments, the City clarified that a small wireless facility

proposed on a new vertical structure that is not a streetlight requires more burdensome review as a minor

condition use permit. This is still unlawful because it unreasonably and unnecessarily forces most or all of

2 California Government Code Section 65964(c).

City of Escondido Planning Commission

July 16, 2019

Page 3 of 5

AT&T’s small cells into a more burdensome process than for other infrastructure deployments. As AT&T

previously noted, this significant problem can be easily addressed if the City makes small revisions to its

design standards that will allow AT&T’s small cells to proceed through the City’s administrative

permitting process. AT&T requests that the City takes a little more time to work with AT&T and other

industry members to be sure that its administrative process will accommodate real-world small cells. And

while AT&T commends the City for allowing providers to propose pre-approved designs, the City should

still make further revisions to the Proposed Guidelines and revise the Proposed Amendments to avoid

violations of the law.

Specific Comments on the Proposed Guidelines

1. Pre-approved Designs. Again, AT&T appreciates that the City will allow wireless providers to

propose designs for pre-approval by the City Council, as stated in Section IV(D) of the Proposed

Guidelines. AT&T suggests that the City develop a set of pre-approved designs and adopt a process by

which an application that is substantially consistent with pre-approved designs will be deemed approved.

2. Acceptance of Applications. Section III(C)’s revisions state that providers must submit

applications in-person and only during designated times, which is still limited to as few as eight hours per

week. The FCC’s shot clock rules and regulations do not support these significant limits on filing

applications. In fact, the shot clock will start when an application is submitted – even by proffer – whether

or not the City accepts the filing. While AT&T will certainly work with the City and try to file its

applications in-person during designated hours, the City must allow more flexibility to avoid unnecessary

disputes.

3. Batched Applications. AT&T objects to Section III(D), which limits batched applications to five

small wireless facilities and deems the entire batch denied if any application does not match the others in

that batch. This is inconsistent with the FCC’s rule, which does not authorize batching limitations.3

Further, denial of companion applications will violate the Telecommunications Act, which prohibits the

City from denying a wireless siting application absent substantial evidence.

4. Fees. Section III(G) allows the City to establish fees for small wireless facilities by City Council

resolution. AT&T again asks the City to provide a copy of its approved fee schedule to determine whether

the fees comply with the Infrastructure Order.

5. Application Processing. Section III(H), which provides the review process for small wireless

facilities applications, allows the Planning Division to verify compliance with the City’s design and

development standards before forwarding a copy of the application materials to the Engineering Services

Department to review technical specifications. While multiple departments certainly may review an

application, all reviews must take place within the shot clock, and the City has only 10 days to issue an

incomplete notice from the time the application is first submitted.4 Thus, for example, if the Planning

Division does not forward application materials to the Engineering Services Department within the first

ten days, that department will be unable to pause or reset the shot clock.

6. Prohibited Support Structures. The City should strike the proposed ban on the installation of

enumerated support structures in Section IV(C) of the Proposed Guidelines, including traffic signals,

archways over roads or pedestrian plazas/walkways and wooden utility poles. These categorical bans on

3 See 47 C.F.R. § 1.6003(c)(2) and Infrastructure Order at ¶114.

4 See 47 C.F.R. § 1.6003(d)(1).

City of Escondido Planning Commission

July 16, 2019

Page 4 of 5

attaching facilities to certain structures are unreasonable and will effectively prohibit wireless services in

certain parts of the City in violation of the Act. Moreover, it makes sense to allow traffic light

installations, for instance, because it permits the wireless provider to cover multiple directions from one

location, which a mid-block location may not support. Further, placements on archways over roads or

pedestrian walkways may be more aesthetically pleasing and may help AT&T provide critical wireless

services to customers in transit. Finally, AT&T has the right to place wood poles, and a blanket

prohibition on wood poles for small wireless facilities is discriminatory.

7. Prohibition on Utilizing an Arm or Other Horizontal Bracket/Brace. Section IV(C)(3) on Page 8

of the Proposed Guidelines prohibits small wireless facilities that “project from a support structure by use

of an ‘arm’ or other horizontal bracket/brace.” But in some instances, arms or horizontal brackets or

braces may be necessary for deployment. This prohibition is likely discriminatory and may effectively

prohibit wireless services.

8. Height. Section IV(D)(1)(a) limits the overall height of small wireless facilities above a support

structure in the public right-of-way to four feet above the support structure. This restriction may actually

harm aesthetics by limiting stealthy facilities. Furthermore, this overall height limit may effectively

prohibit wireless services, especially in areas where lower attachment heights are unavailable on existing

poles in a particular area. The City also should make clear that pre-approved designs do not need to

comply with this height restriction.

9. Overly Restrictive Dimensions. Section IV(D)(2)(b)’s revisions provide a maximum cumulative

volume of three cubic feet for all antennas and shrouds on a small wireless facility but allows top-

mounted antennas and shrouds to have a maximum volume of six cubic feet “if necessary to provide a

tapered transition to the pole on which it is mounted.” This requirement remains inconsistent with federal

law, which caps individual antenna volume at three cubic feet but neither includes the shroud in that

calculation nor places any limits on cumulative volume for antennas. This Section should be revised to be

consistent with the FCC’s regulation.5

Section IV(D)(2)(c) limits top-mounted antennas and shrouds to 16 inches wide. And Section

IV(D)(2)(e) limits side-mounted and flush-mounted antennas with integrated radios to 12 inches wide and

9 inches deep. These dimensions will prohibit (or route to a minor CUP process) most of AT&T’s small

cells. Again, just a few slight changes to these restrictions will avoid prohibitions and better suit the

City’s goal to encourage use of its administrative process. And again, the City should make clear that pre-

approved designs do not need to comply with these restrictions.

10. Accessory Equipment Volume. As stated above, the City limits the volume of pole-mounted

accessory equipment to 7 cubic feet in Section IV(D)(3)(b). AT&T reiterates that this is not technically

feasible, and therefore unreasonable, which violates the FCC’s aesthetic standard. This is too small to

accommodate real-world small cells, which will materially inhibits AT&T’s ability to provide and

improve wireless services in violation of the Telecommunications Act.

11. Number of Antennas and Radios. In Section IV(D)(4)(d), only one top mount antenna or two

side-mount antennas are allowed per pole. This requirement must be deleted. Federal law does not permit

local governments to impose a limit on the amount of antennas for small wireless facilities. Additionally,

limiting the amount of radios will effectively prohibit deployments of the latest generation of wireless

technology. To avoid dictating or prohibiting technologies, which is unlawful, the City must provide for

5 See 47 C.F.R. § 1.6002(l).

City of Escondido Planning Commission

July 16, 2019

Page 5 of 5

DMS/12500669v.1

more flexibility in its Proposed Guidelines. Moreover, such limitations – even if they were lawful –

would result in proliferation of wireless facilities because these limits would force providers to install

more sites to accomplish the same objectives.

12. Indemnification. The City should not seek indemnity from an underlying property owner, as it

does under Section V(GG) of the Proposed Guidelines. Not only does this risk interfering with existing

leases, it also has the effect of interfering with prospective economic relations between AT&T and

property owners within the City. In addition, the indemnification provision needs to carve out exceptions

to indemnity in instances of the City’s own negligence. And AT&T must retain the right to select its own

counsel.

13. Electric Meter Upgrades. AT&T objects to Section V(PP) of the Proposed Guidelines. Once

AT&T installs a ground-mounted electric meter, the meter is permitted to remain for ten years. AT&T

will discuss removal of a ground-mounted electric meter in the context of a permit renewal.

Specific Comments on the Proposed Amendments

1. Irrigation System. In Section 33-703, providers must install a permanent irrigation system. The

City must eliminate this requirement as it is unreasonable and discriminatory. AT&T will certainly

replace landscaping damaged during construction but cannot be required to maintain replacement

landscaping, let alone provide a new irrigation system.

2. Maintenance. In Section 33-704(i), providers have 30 calendar days to repair or replace damaged

equipment and landscaping. AT&T respectfully requests at least 60 calendar days to repair any damage.

3. Experts. Section 33-705(b) states that the City can employ experts, at the applicant’s expense, to

review application materials. While AT&T appreciates the City’s desire to thoroughly review

applications, experts can unnecessarily increase the cost of deployment and slow down the permitting

process. Use of experts should limit review to appropriate and objective criteria, such as a structural

safety assessment or compliance with FCC regulations of radio frequency emissions.

Conclusion

There remain some provisions of the City’s Proposed Guidelines as well as the Proposed

Amendments that need to be revised to come in line with applicable laws. AT&T would be happy to work

with the City to develop the Proposed Guidelines and Proposed Amendments in a manner that will foster

rather than frustrate responsible wireless facility deployments.

Sincerely,

Aaron M. Shank

cc: Mike Strong, Planning Commission Secretary

From: Salas, Adrian Sent: Tuesday, July 16, 2019 4:22 PM To: Adam Finestone; Jay Paul Cc: Friese, Tanya Subject: Comments - Escondido Wireless guidelines and Code Amendment - Crown

Castle Hi Adam and Jay, Regarding the draft guidelines that will be before the Planning Commission on Tuesday, Crown Castle submits the following comments: Background/trends (This might help contextualize why ubiquitous and robust coverage and capacity is necessary): Wireless access has become a necessity of modern life. According to the Centers for Disease Control and Prevention, over half of American households are wireless-only, meaning they have no ‘land line’ service. Additionally, mobile data traffic has increased 238% in the last two years alone (2016-2018), and that trend is expected to continue (Accenture). Like access to good roads and highways, there are direct and indirect economic benefits associated with dependable wireless connectivity. Today’s mobile revolution has expanded critical connectivity capabilities to underserved communities via their smartphones. This is particularly important for young, minority, and low-income users, as they disproportionately rely on smartphones for information or to access vital resources (Pew). There are also public safety aspects of wireless coverage as well: 80% of 911 calls originate from a mobile device (NENA). Reliable and resilient communications connect police officers, firefighters, and other first responders by providing information they need wherever they are. The Chula Vista Police Department for example, is expanding their Drones as First Responder Program, which can be dispatched to an emergency and send HD video back to Headquarters. San Diego County has adopted a mobile strategy for communicating to citizens during emergencies through services like the SD Emergencies App, CA Shakealert, and AltertSanDiego, which provide information on disasters, maps, and shelters directly to smart phones that are “geofenced” in a particular area. This increased usage and innovation needs infrastructure to support it. We are trying to keep up with ballooning demand and provide the platform for flourishing innovative and safety-related applications. Draft comments: Section III-H outlines the process for incomplete applications, which calls for comments/markups from the city. However, other sections of the draft say incomplete applications will be denied. We request that those sections be made consistent with Section H. As mentioned in our comments from 6/19/19, we find many of the permitting requirements in section IV-C to be prohibitive (or effectively prohibitive) of wireless service, such as prohibitions 1, 6 and 7 on page 8. Regarding undergrounding, once a CPUC Rule 20 project is declared, we will not pursue adding equipment, and we are responsible to underground our existing equipment. Until that declaration is made, this is an effective prohibition as undergrounding is still aspirational not planned. On the second list of prohibitions, Item 2 (40 foot buffer to residential units) – This can also be a prohibition of service in areas where setbacks are shorter than 40 feet, and would then be in conflict with federal regulation, which states: “Congress determined that state or local requirements that prohibit or have the effect of prohibiting the provision of service are unlawful and thus preempted.” (47 U.S.C. §§ 253(a),

332(c)(7)(B)(i)(II). Again, over 50% of American households do not have a land line, so ubiquitous wireless coverage and capacity is needed in residential areas. III.G - what are the fees associated with applying expected to be? Is there a cost savings for batched applications? Details on when/how fees will be established would be helpful. IV.D.3.d.II – six cubic feet maximum is prohibitive. Again, efforts can be made to meet this under certain circumstances, but a strict limit is definitely prohibitive. IV.D.4.d – This requirement will be prohibitive to the 5G rollout as separate antennas are needed for each service. 5G will not swap out 4G but will be complementary, especially as not all users will have 5G capabilities until they upgrade their device (which they may never do). This might also have the effect of forcing us to install new verticality rather than collocating. IV.D.4.h – we suggest revising the language to “like for like luminaires.” **Additionally, we have reached out to the city a few times to get the MLA process started. Please advise on that request. ** References: Centers for Disease Control and Prevention - Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July–December 2016; 2017. https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201705.pdf Accenture; How the Wireless Industry Powers the US Economy; 2018 https://api.ctia.org/wp-content/uploads/2018/04/Accenture-Strategy-Wireless-Industry-Powers-US-Economy-2018-POV.pdf NENA – National Emergency Number Association; https://www.nena.org/page/AboutNENA Pew Research, Mobile Fact Sheet; 2019. https://www.pewinternet.org/fact-sheet/mobile/ Thank you, ADRIAN SALAS Government Affairs Manager, San Diego T:(858) 935-3831 M:(619) 917-6116 CROWN CASTLE 10301 Meanley Dr. Ste. 200 San Diego, CA 92131 CrownCastle.com

This email may contain confidential or privileged material. Use or disclosure of it by anyone

other than the recipient is unauthorized. If you are not an intended recipient, please delete this

email.

https://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201705.pdfhttps://api.ctia.org/wp-content/uploads/2018/04/Accenture-Strategy-Wireless-Industry-Powers-US-Economy-2018-POV.pdfhttps://api.ctia.org/wp-content/uploads/2018/04/Accenture-Strategy-Wireless-Industry-Powers-US-Economy-2018-POV.pdfhttps://www.nena.org/page/AboutNENAhttps://www.pewinternet.org/fact-sheet/mobile/

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From: MCGEE, KEVIN Sent: Friday, September 6, 2019 12:27 PMTo: Adam FinestoneCc: JANSMA, JIMSubject: RE: [EXT] RE: Escondido Small Wireless Service Facility guidelines: Recommended changesA�achments: AT&T Comments July 16 2019.pdf Adam, As we discussed in our mee�ng on August 14, I am providing you detailed comments related to the Design Guidelines , inaddi�on to the comments provided in the July 16, le�er that was provided to the Planning Commission by our LegalCouncil, Aaron Shank of Porter Wright. It is my understanding that the City of Escondido wants to provide for more opportuni�es for an “Administra�ve review”for small cell facili�es, in order to provide a simple way to expedite the permi�ng process of these applica�ons and toalign with the September, 2018, FCC Ruling. Based upon this understanding, I believe that there are some specific “minorchanges”, to the “Design Standards” as outlined in Sec�on IV.D of the Proposed Guidelines, that can be made to help theCity meet this goal for an Administra�ve review for Small Cell facili�es. I believe that if these changes to the Guidelineswere to occur that a majority of facili�es, could meet the Administra�ve Permit Process.

· Sec�on IV.D.2.b. Antennas. This sec�on limits any small cell facility to 1 (max. 3 c.f) antenna. For our ini�al 4Gbuild, we will meet this requirement, as AT&T uses a 12” diameter x 24” tall, (2 c.f.) antenna for 4G. This “1antenna limita�on”, does not, however, consider 5G technology which is coming soon. With 5G equipment, therewill be 2, addi�onal ”antennas” that will be integrated into each of the 2, 5G radios and therefore, visually, thepublic will not see any addi�onal antennas, only the 5G “radios”. As I assume that the City was not aware of the5G integrated antennas, I would recommend changing the language to 1 “separate, non-integrated antenna” andI would not include integrated antennas in the maximum 3 c.f. limita�on. I would be happy to show you examplesof our planned 5G equipment.

· Sec�on IV.D.2.e. Antennas. This sec�on can limit the ability for the future 5G radios to go thru theAdministra�ve process, due to the specific dimensions listed (12” & 9”), especially, if the City requires a shroudaround the radios. For example, our planned 5G radios, un-screened are 14”h x 7.5”w x 7.5”d. Without screeningwe can meet the dimensions, but it may be ques�onable if screened and we may exceed the limita�on by onlybe “ a few” inches. In addi�on, each carriers’ equipment dimensions will vary and this should be taken intoconsidera�on.

· Sec�on IV.D.3.b. Accessory Equipment. As you are aware, the FCC Ruling allows for small cell facili�es to haveup to 28 c.f. of accessory equipment. With this in mind, AT&T’s current 4G, small cell design, for accessoryequipment meets the City proposed 7, c.f. requirement, however it is possible, that by including the dimensionsof the stealthing, we may exceed the proposed maximum 20” limita�on, by 2 or 3 inches, in one dimension. Inaddi�on, the 7 c.f. limit, does not take the 5G equipment into considera�on. If the c.f. limit for an Administra�vereview was increased to 10 c.f. and was flexible for the accommoda�on of any required “stealthing”, then thiswould accommodate for (AT&T’s) 4G & 5G accessory equipment needs at this �me and is well below the FCCallowed, 28 c.f.

· Sec�on IV.D.4.d Street Lights. This limita�on states a maximum of 2 radios per pole. AT&T’s 4G design inCalifornia, has 2 radio sizes. 80% of the �me we design with our smaller radios. These radios, measure 8”h x 8”wx 4”d. With this design we propose 2 of these radios on each side of the pole, resul�ng in a total of 4 radios perpole, equaling 4 c.f. and overall dimensions of 8”w x 22”h x 4”d. The limita�on of this requirement actually,deprives us from providing the op�mal RF design for a par�cular area and also limits us from providing the “leastvisually intrusive means” regarding aesthe�cs by providing the design with the smallest resul�ng volume andalso does not allow for 5G technology. I would propose that the limita�on be restricted to a maximum cubic footlimit, ie 10 c.f., to accommodate for both 4G & 5G, vs. also limi�ng the number of radios or specific dimensions.

· Sec�on IV.D.5.a. Wooden U�lity Poles. The designs on u�lity poles are established by State Law related toGeneral Order 95 and administered by the U�lity pole owner. Therefore, the limita�ons in this sec�on by the Cityare in conflict with State Law and should be removed.

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· Sec�on IV.D.7 Orienta�on. The restric�on to be oriented away from residen�al uses, is in direct conflict withFederal Law and should be removed.

Adam, as I have stated previously, I believe that these proposed changes can accommodate the industry and also meetthe City’s goal to expedite the permit processing of small cell facili�es, via an Administra�ve review, while also mee�ngthe overall goal of the FCC for a more expedi�ous deployment of small cell facili�es. I would be happy to review my comments with you in person if you wish. Let me know if you would like to meet or if youhave any ques�ons. Thank you in advance, for your considera�on of AT&T’s comments. Kevin McGeeAT&T Mobility San Diego & Las Vegas858 232-3996 From: Adam Finestone Sent: Tuesday, August 27, 2019 9:41 AMTo: MCGEE, KEVIN Subject: RE: [EXT] RE: Escondido Small Wireless Service Facility guidelines mee�ng Good morning Kevin, Yes, you have �me to provide that info. I’ve been working with our a�orney’s office to incorporate various modifica�onsto the ordinance and guidelines but don’t have anything ready to go yet. We are shoo�ng for the second mee�ng inSeptember (24th), though it may wind up being the first mee�ng in October (8th). I’ll keep you posted. Adam Finestone, AICPPrincipal PlannerCity of Escondido

From: MCGEE, KEVIN Sent: Tuesday, August 27, 2019 8:19 AMTo: Adam Finestone Subject: [EXT] RE: Escondido Small Wireless Service Facility guidelines mee�ng CAUTION:This email originated from outside of the organization. Do not click links or open attachments unless yourecognize the sender email address AND know the content is safe. Adam, Please let me know if I s�ll have �me to provide you with AT&T’s equipment size and dimension informa�on, as discussedin the 8/14 mee�ng. I hope to get you this informa�on by the end of the day today. Also, can you let me know the �ming of going back to Planning Commission. Thank you. Kevin McGee

mailto:afinestone@escondido.orgmailto:km4510@att.commailto:km4510@att.commailto:afinestone@escondido.org

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AT&T Mobility San Diego & Las Vegas858 232-3996 From: Adam Finestone Sent: Wednesday, July 24, 2019 4:52 PMCc: Jay Paul ; Adam C. Phillips ; Bill Mar�n ;Mike Strong ; Owen Tunnell ; Elizabeth N. Lopez; Vincent McCaw Subject: Escondido Small Wireless Service Facility guidelines mee�ng The Escondido Planning Division has scheduled a mee�ng in order to discuss the proposed Small Wireless Facilityguidelines and dra� Zoning Code Amendment language with wireless industry representa�ves. The mee�ng will be heldon Wednesday, August 14th, at 2:00pm in the Planning Division office at City Hall (201 N. Broadway, Escondido). You areencouraged to a�end to discuss concerns regarding the dra� guidelines and code amendments that have been presentedto you. Please contact me if you have any ques�ons prior to the mee�ng. Thank you,

Adam Finestone, AICPPrincipal PlannerCommunity Development | City of Escondido760-839-6203www.escondido.org

mailto:afinestone@escondido.orgmailto:jpaul@escondido.orgmailto:aphillips@escondido.orgmailto:bmartin@escondido.orgmailto:mstrong@escondido.orgmailto:otunnell@escondido.orgmailto:enlopez@escondido.orgmailto:vmccaw@escondido.orghttps://urldefense.proofpoint.com/v2/url?u=http-3A__www.escondido.org&d=DwMFAg&c=LFYZ-o9_HUMeMTSQicvjIg&r=myzAoaVldqTGIFxsihSnJw&m=AyRGtXPXQrHRjkE8Vgu02xP93uXZp4iIQd-SS455PV4&s=ZGltUyzlN_JZAyOTWiAxjDp67GwPXi8OGGNOuzDJKSI&e=

Aaron M. Shank ashank@porterwright.com

Porter Wright

Morris & Arthur LLP 41 South High Street

Suite 2900 Columbus, OH 43215

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December 3, 2019

VIA EMAIL

Adam Finestone City of Escondido 201 North Broadway Escondido, CA 92025

Re: AT&T’s Comments on the City of Escondido’s Revised Guidelines for Deployment of Small Wireless Facilities in the Public Right-of-Way and the City’s Proposed Wireless Code Amendments to Chapter 33 of the Escondido Zoning Code

Dear Mr. Finestone:

I write again on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) to provide comments on the city’s revised guidelines for deployment of small wireless facilities in the public right-of-way (“Proposed Guidelines”), and the city’s proposed wireless code amendments to Chapter 33 of the Escondido Zoning Code (“Proposed Amendments”). AT&T appreciates the city taking some additional time to bring its proposed wireless facility siting regulations into compliance with applicable state and federal laws, including the Federal Communications Commission’s Infrastructure Order.1 As written, however, these proposed regulations still would violate important state and federal laws. AT&T asks the city to reconsider comments raised in my July 16, 2019 letter to the City Planning Commission, and to revise these proposed regulations with an eye towards allowing flexibility to foster responsible deployments. AT&T offers these further comments on its top concerns with these proposed regulations.

AT&T’s Top Concerns with the Proposed Guidelines and Proposed Amendments

1. Residential Zones. The Proposed Guidelines now apply a minor conditional use permit process to small cells that are located “closer than 40 feet from any residential unit, unless said unit has no windows

1 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27, 2018) (“Infrastructure Order”).

Adam Finestone December 3, 2019 Page 2

or doors on any wall facing the antenna.” And proposed Section 33-703 still discourages facilities in residential zones unless the provider submits a feasibility study. These requirements are improper and unnecessary. These restrictions are discriminatory to the extent not applied to other infrastructure deployments and will effectively prohibit wireless services in certain portions of the city.2 2. Permit Processing. The city’s Proposed Guidelines still risk shot clock compliance. The city limits small cell submittals to just a few hours per week. This will effectively prohibit wireless services. And the FCC has ruled that restrictions like this that rise to the level of de facto moratoria are unlawful and do not toll the shot clock.3 In addition, Section III(H) still allows the Planning Director to verify an application’s compliance with the city’s design and development standards before forwarding a copy of the application materials to the Engineering Services Department for review of technical information, which sets the city up to inadvertently miss shot clock deadlines. The city should apply a concurrent review process to small cell applications to ensure that the city is able to review applications within the 60-day and 90-day shot clocks for small cells.4 3. Prohibited Support Structures. Again, the city should strike the proposed ban on the installation of small cells on traffic signals, archways over roads or pedestrian plazas/walkways and new or replacement wooden utility poles in Section IV(D) of the Proposed Guidelines. The FCC’s Infrastructure Order applies to all city-owned or controlled structures in the rights-of-way. Moreover, traffic light attachments preserve aesthetics by allowing providers to cover busy areas in multiple directions from one site. In addition, while AT&T typically prefers to collocate on existing poles, it has a state-law franchise right to place new poles in the rights-of-way,5 and a blanket prohibition on wood poles for small cells is discriminatory. 4. Design Standards. Many of the city’s design standards in the Proposed Guidelines still improperly limit height and sizes for small cells. Section IV(E)(1)(a) limits the overall height of small cells above a support structure in the public right-of-way to four feet above the support structure. This will not only effectively prohibit wireless services, but will eliminate the most aesthetically-pleasing small cell designs. The city also continues to limit the volume of pole-mounted accessory equipment and antennas and shrouds. These limits are too restrictive to accommodate real-world small cells. A few slight changes to the city’s restrictions will avoid effectively prohibiting wireless services. 5. Number of Antennas and Radios. Section IV(E)(4)(d) does not allow more than one top-mount shroud/radome and one-side mount antenna/radio/equipment cabinet, or two side-mount 2 Id. at ¶ 86. 3 See Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-111 (August 3, 2018), at ¶¶ 140-160; Infrastructure Order at ¶ 145. 4 See 47 C.F.R. § 1.6003(c)(1)(i)&(iii). 5 Cal. Pub. Util. Code § 7901.

Adam Finestone December 3, 2019 Page 3

antenna/radio/equipment cabinets per pole. This violates federal law, which does not permit local governments to impose a limit on the amount of small cell antennas. The city needs to delete this requirement to avoid prohibiting certain technologies that cannot fit within this requirement. 6. Experts. Section 33-705(b) of the Proposed Amendments allows the city to employ experts, at the applicant’s expense, to review applications. The FCC has cautioned municipalities against excessive charges by third party consultants, which cannot be passed on through application fees because only objectively reasonable costs can be imposed.

Conclusion

The city’s Proposed Guidelines and Proposed Amendments still include numerous problems, which AT&T urges the city to revise. AT&T would be happy to work with the city to develop the Proposed Guidelines and Proposed Amendments in a manner that will encourage responsible wireless facility deployments. Sincerely,

Aaron M. Shank AMS:sb

12943141v1

From: Salas, AdrianTo: Adam FinestoneCc: Costa, Brandon (Contractor)Subject: [EXT] RE: Small Wireless Facilities - Proposed Zoning Code Amendment and GuidelinesDate: Tuesday, December 3, 2019 10:56:07 AMAttachments: image001.jpg

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Hi Adam. Based on the drafts you shared, Crown Castle has the following comments:

There are no application fees listed. Hopefully proposed fees will be in line with the FCCOrder and published before PC hearing next week.IV.(D) 2 Facility cannot be located within 40 feet to any residential unit (unless said unithas no windows or doors facing the antenna) via admin permit. May apply with MinorConditional Use Permit – Our concern is that if a MCUP is required, will it be reviewedand approved within shot clock times? Also, if there are there areas of the city whereresidential units have setbacks of only a few feet, any/all deployments in those areaswould require MCUPs, and if there is blanket denial of MCUP that would constitute aneffective prohibition of service. Traffic signals prohibited – In other cities, traffic signals have made for good sitinglocations as they typically provide line of site in 4 directions (which is efficient for signalpropagation), while limiting visual impacts . Additionally, a traffic signal is another optionfor co-location, and would be preferred to siting a stand-alone pole in the ROW. Werecommend removing the traffic light prohibition, or perhaps including them under anMCUP. We are happy to meet with your Public Works Department and work out anystructural or maintenance related concerns. V.(K) Post-installation RF Certification within 90 days – As we mentioned in the publicmeeting last week, we have set equipment specifications, and everything we design,procure and install complies with FCC RF limits. This requirement would add considerableamount of reporting and costs. We suggest removing this requirement, or perhapsrequiring one post-installation certification per design, as the same design will likely bereplicated at different sites.V.(M) Site maintenance. Any issues shall be remedied by the applicant within 24 hours’notice – We request this be changed match other utility stated policy, and separated intourgent and non-urgent Safety issues will of course be prioritized and addressed as soon aspossible. Non-safety maintenance issues will be scheduled based on crew availability andother factors. SDG&E for example, states graffiti abatement will occur within 10 days ofnotice. Master License Agreement – The guidelines state an agreement is required at time ofapplication, yet no draft has been made available. We would like to comment on thedraft in advance of the regulations becoming effective as to avoid delays later on. TheReal Property Division has been contacted but no details have been shared.

mailto:Adrian.Salas@crowncastle.commailto:afinestone@escondido.orgmailto:Brandon.Costa.Contractor@crowncastle.com

My team and I really appreciated the conversation you facilitated last week, and the stakeholderinvolvement you are working through. We look forward to working with the City going forward. Have a good day, and let me know if you have any follow up questions. ADRIAN SALASGovernment Affairs Manager, San DiegoT:(858) 935-3831M:(619) 917-6116 CROWN CASTLE10301 Meanley Dr. Ste. 200 San Diego, CA 92131CrownCastle.com

From: Adam Finestone Sent: Tuesday, November 26, 2019 5:26 PMTo: Adam Finestone Cc: Jay Paul ; Mike Strong ; Darren Parker; Adam C. Phillips ; Bill Martin

Subject: Small Wireless Facilities - Proposed Zoning Code Amendment and Guidelines CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless yourecognize the sender and know the content is safe.

Attached is a copy of the draft Zoning Code Amendment and draft Guidelines that were distributedat the meeting last night. Any comments provided to my attention by 5 p.m. on Tuesday, December3, will be taken into consideration prior to finalizing the draft documents for consideration by thePlanning Commission at their December 10 meeting. Please let me know if you have any questions. Thank you.

Adam Finestone, AICPPrincipal PlannerCommunity Development Department | City of Escondido760-839-6203www.escondido.org

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December 3, 2019

VIA EMAIL

Adam Finestone

Principal Planner

City of Escondido

201 North Broadway

Escondido, California 92025

Re: Draft Zoning Code Amendments and Guidelines, Small Cell Wireless Facilities

Dear Adam:

We write again on behalf of Verizon Wireless regarding the revised draft zoning

code amendments (the “Draft Amendments”) and draft Guidelines for Deployment of Small Wireless Facilities in the Public Right-of-Way (the “Draft Guidelines”). Verizon Wireless appreciates staff’s collaborative approach to revising these proposed

regulations. We provided initial comments in our July 16, 2019 letter to Planning Commission Chair James Spann. Verizon Wireless wishes to address several additional

provisions that should be revised to better accommodate small cells in the right-of-way

that are needed to serve Escondido residents and visitors. We ask you to consider our

prior comments and the below suggestions, and to revise the Draft Amendments and

Draft Guidelines prior to a public hearing.

Draft Amendments

33-708(c). Dedication of abandoned or discontinued poles to City. If VerizonWireless places a new pole for a small cell in the right-of-way as allowed by Publ